money had and received for his ufe; and after feveral learned arguments at the bar, the court gave judgment for the plaintiff Barnes that the action well laid, because the halfpenny per letter was not accounted for, or carried to the revenue of the poftoffice; but the court of B. R. gave no opinion upon the general question, which was, whether the poft-master of Bath was not obliged to carry and deliver to the inhabitants at their respective houfes at Bath, all poft-letters directed to them refpectively without any reward besides the usual postage.

There was another cafe of Stock verfus Harris poft-master of the city of Gloucester in Eafter term 1771, B. R. much like the prefent cafe at bar; Harris gave publick notice to the inhabitants of Gloucefter, that they muft either pay an halfpenny over and above the ufual poftage, for every letter delivered to them at their respective houfes, or muft fend for their letters to the poll-office; whereupon the plaintiff Stock, who was well known to Harris, gave notice to him, to deliver all letters directed to him (Stock) at his lodgings at fuch a houfe in Gloucefler, for the common and ufual poftage; and in his declaration affigned for breach, that the defendant Harris did not deliver to him the faid Stock a poft-letter directed to him within a reasonable time, but wrongfully and injuriously kept and detained the fame; upon the trial, the jury found the facts above, and that letters coming by the general-poft had always been delivered at their houfes for the ufual postage; upon argument the court of B. R. gave judgment for the plaintiff.

The cafe at bar ftates, that previous to the year 1741, the letters which were brought by the poft from London, directed to the inhabitants of Ipfwich, were delivered to them at their refpective places of abode, by the deputy-post-master of Ipfwich for the time being, at the legal rate of poftage only; in the Gloucefter cafe the fpecial verdict finds that always before and. until the notice given by the poft-mafter there, all poft-letters had been delivered to the inhabitants to whom directed at Gloucefter, at the ufual and legal rate of poftage, without paying an halfpenny per letter befides; there is no difference between these two cafes, for there can be no cuftom as to time in this matter, because the poft-office was erected within the time. of memory; there can be no local law; the law at Ipfwich (as to poft-letters) being the fame as the law at Gloucefter. So the counfel for the plaintiff concluded, that it appears by the common law, the ftatutes, and the cafe of Stock and Harris, the plaintiff ought to have judgment.

Counsel for the defendant-Although it must be admitted. that letters must be carried by the general-poft into every city Vol. III.

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or town to which they are directed, yet it doth not follow, that the defendant as poft-mafter of Ipfwich is obliged to deliver the letters to the inhabitants of Ipfwich, at their respective places of abode, by the common law, or the ftatutes.

It is faid for the plaintiff, that if a man undertakes to do a thing, he is obliged to do it although there be no confideration; but this certainly would be nudum padum: indeed, if a man undertakes to carry a thing fafely and deliver it to a certain perfon, and enters upon the truft, by receiving it into his pof. feífion, he then becomes obliged to perform the truft by carrying the thing fafely, and delivering it according to his undertaking although there be no confideration; for, whoever undertakes to perform a truft for another, muft not let that person suffer by his negligence.

It is admitted that the best rule for expounding acts of parlia ment is by the maxims and rules of the common law according to Savil 39. 1 Williams 252. and many other books; but it cannot from thence be inferred that if a man had fet himself up as a letter-carrier from town to town, before the time of the ftatutes refpecting the general-poft-office, that he would have been obliged to deliver the letters to the feveral and respective perfons to whom fuch letters were directed at their houses in thofe towns, if the undertaking was only to carry the letters from town to town; the makers of thefe ftatutes had in view publick convenience, and the publick revenue; trade and commerce was only in cities and great towns, and the legislature could only have in view the trade and commerce of those cities and towns, and not the houfes and places of abode of every individual perfon there, and elsewhere in the kingdom; it is contended on the other fide that the poft-mafter is obliged to deliver every letter fent by the poft-office at London to the perfon to whom it is directed, at his place of abode, let him live where he will in the kingdom, at any private alone-houfe or cottage; but furely the legislature could never intend that the post-matter at the city of Wells thould go over Mendipp, or the post-mafter at Alnwick fhould go over Cheviott-hills, to deliver poft-letters to perfons dwelling on the other fide of thofe hills; that they fhould be obliged to fend out men and horfes to every fide of the, poft-towns, which muft neceffarily occasion a vast expence, and would be a great detriment to trade, as well as to the revenue; befides in inany places it would be neceffary for the poft-maflers to keep packet-boats. This cafe is not like the cafe of a common-carrier, for in refpect to him there is no law but the common; the general-pofl-office is by flatute.

Lord Chief Juftice-I lived in a place ninety miles from London, and ten miles diftant from the neareft poft-town, in the

road

road to another poft-town, and was charged no more than the ufual and legal poftage for my letters, brought (and delivered) to me from London.

Counsel for the defendant-But fuppofe the place of delivery had laid out of the poft-road, muft the perfon carrying the mail have gone out of his way? It is fubmitted he would not have been obliged fo to do; becaufe of the great inconvenience which muit follow from the delay it would occafion; contrary to the ftatute of 12 Car. 2. c. 35. the preamble whereof fays that the poít-office was eftablished for carrying and re-carrying letters with fpeed and safe dispatch; inconvenience is as good an argument for conftruing thefe ftatutes relating to the poftoffice; as it is of the law in the cafe of common carriers, who are answerable for goods whereof they are robbed; for, if the law were otherwife it would be very inconvenient to the publick, because carriers might combine with robbers.

The Gloucefler cafe differs from the cafe at bar, for ever fincé the year 1741, the inhabitants of Ipfwich have paid the recompence of an halfpenny for the delivery of each letter at their feveral places of abode; but in the Gloucester cafe, the halfpenny was never paid at any time fince the erecting of the poft-office; the judgment in that cafe was founded upon the ufage of never having paid the halfpenny; but the ufage in the prefent cafe for thirty years laft paft, has been for the inhabitants of Ipfwich to pay the halfpenny.

Then the counsel for the defendant objected, that it is ftated in the declaration that this action is brought against the defendant as deputy-poft-mafter of the town of Ipfwich, and that the action doth not lie against him; but ought to have been brought against his mafter the poft-mafter-general, according to the opinion of Holt Chief Juftice (which is the better opinion) Dier 238. b. against the other three judges in the cafe of Lane and Cotton, pl. 38. 1 Ld. Raym. 650, 651. The court took time to confider until this term, when they gave judgment for the plaintiff to the following effect.

Curia-It doth not appear until the time of King James 1. that there was any office in this kingdom for carrying on a foreign correfpondence; in Rymer's Fadera, vol. 19. fol. 389. there's a recital of a proclamation of an office for conveying letters to foreign parts, and all other perfons are prohibited to interfere, so it belonged to the prerogative of the crown, as it feems. In the year 1632, the fame office was granted; and in 1635 another proclamation touching the fame office, 19 vol. Rym. Fad. fol. 649.

In

In the year 1637, there was another proclamation, when a letter-office within the King's own dominions was added to the foreign letter-office, Rym. Fad. vol. 20. fol. 192; in which proclamation there were fome prohibitory clauses.

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In the year 1640 the office was fequeftered, Rym. Fad. vol. 20. fol. 429. thus it was until the troubles, which about that time began to break out in this kingdom. From that time until the refloration, fee the tranfactions, and ordinances of the Houfe of Commons in their journals, in the years 1642, 1644, 1649, 1654, whereby it appears the letter-office grew to be a fu crative office. See allo Scobell's acts and ordinances, fol. 511, 356., in what manner this office was executed and carried on until the Refloration, when the ftatute of 12 Car. 2. ch. 35. was made for erecting and establishing a poft-office "for carying and re-carrying letters by pofts, to and from all parts and places "within England, Scotland, and Ireland, and feveral parts beyond "the feas, the well ordering whereof is [therein faid to be] "of a general concernment, and of great advantage, as well "for prefervation of trade and commerce as otherwife." Another act of parliament was alfo made in Scotland in the time of King William for eftablishing a post-office in that part of Great Britain; both which acts continued in force until after the union of the two kingdoms; when for convenience, and national profit, the flatute of 9 Ann. ch. 10. was enacted for establishing a general. poft-office throughout all the [then] Queen's dominions, Br. whereby the ftatute of 12 Car. 2. and William 3. [for Scotland] were repealed.

The queftion, in the prefent cafe, doth not arife upon any private contract, nor is it like the cafe of a common carrier; but must be determined upon conftruction of the ftat. 9 Ann. ch. 10. which was made for the general benefit of the people of thefe kingdoms, and with a political view to the better fecuring the revenue arifing from the general-poft-office.

Sect. 2. Enacts that one general-poft-office shall be erected within the city of London, from whence all letters, &c. may be with speed fent into any parts of this kingdom, and that one poft-mafter-general fhall be appointed by the crown; which post-mafter, and his deputy and deputies, and his and their fervants and agents, and no other perfon or perfons whatfoever, fhall from time to time, and at all times, have the receiving, taking up, ordering, difpatching, fending poft, or with SPEED, carrying and DELIVERING of all letters and packets whatsoever which fhall be fent to and from all places of Great Britain, &c.

There

There is one general office of the master in London, the centre of a large circumference; in every other poft-town, he has particular offices (executed by his deputies) which are centres of lefs circles; London is the grand Terminus a quo where he receives a letter; the place of abode of the perfon to whom a letter is directed, is the Terminus ad quem; viz. Ipfwich, to which town he carries the letter; and there delivers it to his deputy in his office; fo that the post-mafter is to receive, carry and deliver all letters, which fhall be fent to and from all places of Great Britain, &c. as he receives a letter from one perfon, he is to carry and deliver it to another perfon according to the directions; but in the prefent cafe, the poft-mafter is fo far from delivering the letters directed to the plaintiff at Ipfwich, that (in truth) he retains them; he receives them at his office in London, and delivers them into his office at Ipfwich, which is no more. than giving them with his right hand into his left; he muft do more, he must remove them out of his office at Ipfwich as much as he did out of his office at London, and must deliver them to the perfon at Ipfwich as directed; foct. 17. of the ftat. of Queen Ann enacts, that no perfon or perfons, &c. whatsoever other than the post-mafter-general and his deputies fhall prefume to receive carry or deliver any letter or letters; and the court of B. R. have determined that the poft-mafter cannot take any thing more than the lawful poftage for the carrying and delivering letters; and by fect. 39. no more fhall be taken or paid than the rates mentioned there. By fedt. 40. the letters must not be detained; if the party to whom a letter is directed cannot be found it must be returned, but if the poft-mafter doth not make inquiry for the perfon to whom it is directed, how can he properly return the letter; Sec. 30. touching refufal to pay the poftage fhews that the ftatute means a perfonal delivery; fee this fect. 30. and compare it with fedt. 15. which fays that letters are to be delivered according to the feveral and respective directions of the fame upon pain of forfeiting five pounds for every offence against the tenor of the act.- -See the ftatute of 4 Geo. 2. ch. 33. whereby it is enacted, that penny-poft-men carrying letters out of London, Westminster, or Southwark, may demand and take a penny at the time of the delivery, and fhall not incur any penalty; which fhews the uniform fenfe of this word delivery.

In fhort, if letters were not to be perfonally delivered, or left at the places of abode of the perfons to whom directed, it would be a heavy charge, and a great inconvenience to the subjects of this kingdom; this ftruck the general-poft-office in London, which is but a greater poft-town than other pofttowns; there is no difference between poft-towns, as to this matter, they are only centres of lefs circles than London.

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